Offshore wind compensatory measures: regulations now in force and new guidance published

In this update, we set out the key takeaways from the Habitats and Species (Offshore Wind) (Amendment etc.) Regulations 2026 which came into force on 21 May 2026 and the accompanying Government guidance.

Following our March 2026 update, Habitats compensation for offshore wind: a closer look at the new draft regime, the Habitats and Species (Offshore Wind) (Amendment etc.) Regulations 2026 (“the 2026 Regulations”) came into force on 21 May 2026.

Alongside the 2026 Regulations, the UK Government published two pieces of guidance (“Guidance”) which provide important clarification as to how the new compensatory measures regime will operate in practice:

• Part 1: When and how to compensate for environmental harm; and
• Part 2: Compensation hierarchy and evidence required.

On the same date, the Planning and Infrastructure Act 2025 (Commencement No. 3) Regulations 2026 also came into force.

We explore the scope and practical implications of these changes below.

Scope and application of the Regulations and Guidance

The 2026 Regulations apply to offshore wind and associated infrastructure (as defined in the Energy Act 2023) that is expected to have an adverse effect on the integrity of protected European sites (including Special Areas of Conservation, Special Protection Areas and Ramsar sites). It does not extend to Marine Conservation Zones (MCZs). The Regulations apply in relation to relevant offshore wind activity in:

• English inshore waters (within 12 nm) and English offshore waters (beyond 12 nm);
• Welsh offshore waters (beyond 12 nm) (unless and until the Welsh Ministers publish their own guidance) and Welsh inshore waters (within 12 nm) for infrastructure that is part of an NSIP application and in relation to qualifying SoS functions; and
• Northern Ireland offshore waters (beyond 12 nm) and Northern Ireland inshore waters (within 12 nm) in relation to qualifying SoS functions.

Scottish Government has already laid its own statutory instrument, the Conservation of Habitats and Species (Offshore Wind) (Miscellaneous Amendments) (Scotland) Regulations 2026, which will introduce corresponding changes to the compensatory measures regime for offshore wind in Scottish waters. Further guidance is expected but has not yet been published.

The Guidance applies to applications for DCOs, marine licences and other relevant consents.

When and how to compensate

Part 1 of the Guidance largely confirms and reinforces existing principles but provides a useful practical direction. Compensatory measures remain a last resort with the Guidance providing that these should only be considered once the applicant has applied the mitigation hierarchy and exhausted all options to avoid, reduce and mitigate impacts. Promoters are expected to engage early with the relevant statutory nature conservation bodies (SNCBs).

The guidance gives greater clarity on when compensatory measures are required and how developers should identify and develop suitable measures. It also confirms that the Marine Recovery Fund (MRF) can be used as a delivery route for compensatory measures allowing developers to contribute to the strategic, large-scale interventions.

The compensation hierarchy

Part 2 of the Guidance operationalises the three-tier compensation hierarchy embedded within the 2026 Regulations:

• Tier 1: measures that provide ecological benefits to the impacted feature. Those that are delivered in proximity to the impacted site are preferred – with a particular focus on prioritising measures within the same jurisdiction (for example, for adverse effects within English waters, priority should be given to benefitting the same feature within its biogeographical range in English waters).
• Tier 2: measures that provide ecological benefits to features or groups of features which are similar to the impacted feature. SNCB advice will inform what features are listed as ecologically similar to the feature benefitting from the measure listed in the library and the Guidance includes some considerations that will be applied by SNCBs when giving this advice.
• Tier 3: measures that provide ecological benefits to the UK MPA network more widely, for example by targeting large-scale pressures that impact a number of protected features or sites.

The Guidance clarifies how this hierarchy should be applied in practice:

• Tier 1 must be prioritised, with movement to Tier 2 or 3 requiring a reasoned evidence-based justification.
• Tier 2 and 3 measures must come from the approved “library” of strategic measures(more details below), whereas Tier 1 measures do not have to and can include project-led options.
• A promoter may move up the hierarchy where no suitable lower-tier measure exists; or where a higher-tier measure would deliver greater ecological benefit.

There is also guidance around whether a measure is considered to be “available” at a specific tier, including whether a measure is both feasible (including viability, ability to deliver and timing) and ecologically effective.

It is worth noting that compensatory measures should typically be in place and be functional by the time at which damage to a protected area begins. The Guidance does, however, give flexibility to this as it recognises that there may be some circumstances where it is not possible (a time lag between the adverse effect and the functioning of the measure may be acceptable if for instance the measure requires a significant lead-in time to achieve its full effectiveness or any such delay would not result in irreversible harm to the feature or network). In that scenario, a reasoned case will need to be prepared by the developer and assessed by the consenting authority on a case-by-case basis.

Compensatory measures are required to be “reasonably proportionate” to the adverse effects of a plan or project and there is also guidance around what this means. It clarifies that determinations of “reasonably proportionate” should be based on ecological considerations only and provides examples of how this should work in practice.  

The Guidance also contains further details around compensation success criteria, additionality, monitoring and adaptive management.

Library of strategic compensatory measures

The Guidance introduces further detail on the library of strategic compensatory measures (the library). The library is a collection of approved measures which can be used by project and plan promoters and is led by Defra, in collaboration with other stakeholders. Any interested stakeholder can propose new strategic measures to be included in the library, but ministerial approval, by Defra or Welsh or Northern Ireland Ministers, is required before being added. Early engagement with the relevant governance group is encouraged.

Importantly, tier 2 and 3 strategic compensatory measures can only be used if they have been approved and included in the library.

Evidence and documentation

The Guidance provides a more granular approach on evidence requirements. Evidence is required to demonstrate adverse effects of the plan or project and why the proposed compensatory measures are appropriate. For DCO applications, it is expected that measures are to be justified in a compensation plan that would sit alongside the Report to Inform Appropriate Assessment (RIAA). For other types of application, the RIAA should provide evidence on the measures, including advice provided by the SNCBs about the appropriateness of the measures.

Part 2 is particularly valuable in setting out the level of scientific evidence, monitoring and assessment expected. This aims to help improve consistency in decision making. In particular, section 5.3 of Part 2 of the Guidance contains a checklist of the details that should be provided about proposed compensatory measures and early engagement with SNCBs on the level of detail to be provided is encouraged.

What’s new?

The Guidance does not fundamentally alter the anticipated legal framework explained in our March article, but it does provide clarity on the following points: 

• Gives greater operational detail on applying the compensation hierarchy including evidential thresholds and reasoned case requirements;
• Gives confirmation of the central role of the “library”;
• Provides detailed guidance on evidence, documentation and the structure expected of compensation plan;
• Confirms that the MRF is a mainstream delivery mechanism; and
• Emphasises on the importance of early engagement and the front-loading of evidence.

Concluding remarks

The combined effect of the 2026 Regulations and Guidance provides a more flexible but structured approach to offshore wind compensation, with an increased focus on strategic, large-scale environmental outcomes, certainty, and consistency in the consenting process.

For developers, the key takeaway is the importance of early engagement with SNCBs, careful navigation of the compensation hierarchy and assembling a robust, evidence led compensation strategy from the outset.

Should you have any questions please contact either Jen Ashwell or Adam Richards in our Planning and Compulsory Purchase Team.